Vu Dinh Phuong v. Torture Claims Appeal Board

CAMP 280 /2023, [2025] HKCA 710

On appeal from [2023] HKCFI 1398

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 280 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 326 OF 2023)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 5 November 2024 ([2024] HKCA 1014). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 24 May 2023 refusing to grant extension of time for the applicant to apply for leave to seek judicial review against the decision of the Torture Claims Appeal Board concerning the applicant’s non-refoulement claim.

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the applicant shall lodge written submissions on or before 10 February 2025.  It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction.  The applicant has not lodged any written submissions by the prescribed deadline.  Having considered the papers of this case, we think it is appropriate to determine this application on paper and proceed to do so.

Grounds of appeal

3.The applicant stated the following grounds of appeal in his Notice of Motion:

(1)  The judges were wrong as a matter of law for not having applied the principle of irrationality to the decision of the Director of Immigration (“the Director”);

(2)  The judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director whereby the Director was required to give reason justifying the decision.

Analysis and disposition

4.Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Good grounds have to be shown by the applicant for the court to grant an extension of time pursuant to section 24(5) of the Ordinance (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

5.Section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

6.The applicant was late for nearly 8 weeks in filing the Notice of Motion. In his affirmation, he stated that he believes that the merits of the ground of appeal constitute sufficient justification for the court to exercise its discretion in allowing the appeal to be brought out of time.  He did not provide any explanation for his delay.  We do not think there is any good ground to grant extension of time for the applicant to file his Notice of Motion. 

7.In any event, the applicant’s grounds were not raised in the leave application before the Court of First Instance or in his previous application before the Court of Appeal.  It is not open to him to put forward these grounds for the first time at this late stage of the proceedings, well outside the time limit for bringing judicial review proceedings.  Furthermore, his grounds are just bare assertions which are not supported by any particulars or evidence.  In particular, the Director has given detailed reasons for rejecting the applicant’s claim in the notice of decision.

8.In addition, the applicant failed to identify any particular mistakes in our decision, nor did he identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b).  There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

9.For the above reasons, we dismiss the Notice of Motion filed on 27 January 2025.